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Drunk Driving Defense

Louisiana DWI FAQs

These are 20 of the most frequently asked questions regarding a D.W.I. arrest in Louisiana. If you have a more specific question please feel free to e-mail Mark at markemorice@moricelawfirm.com.

  1. What do police officers look for when searching for drunk drivers on the highways

    The following is a list of symptoms that may indicate the person observed may be driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Safety Administration (NHTSA):
    Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety. The most commonly cited violation in a D.W.I. case is improper lane usage. This claim is difficult to refute.
  2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

    You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. Never say that "you just had a couple". The statement will be used against you in Court and will corroborate the Officers testimony that you had a few too many.
  3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

    In Louisiana, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

    However, once you have asked for a lawyer the police may not continue questioning you until you have spoken with that lawyer. It may not be possible to have a lawyer come to the scene of your arrest. The best plan is to ask to speak with a lawyer before answering any questions and then remain silent. Remember, the Officer may videotape you both out of his unit and inside of his unit. Even if you are sitting alone in the back of his car the camera may be rolling so be careful what you say.
  4. What is the officer looking for during the initial detention at the scene?

    The traditional symptoms of intoxication taught at the police academies are:
  5. What should I do if I'm asked to take field sobriety tests?

    Never take a Filed Sobriety Test. They are unreliable, graded unfairly and have nothing to do with your ability to operate a motor vehicle or boat. (When's the last time you stood on one leg while driving?).

    Mark is certified in Field Sobriety Testing by the National Highway Traffic Safety Administration (NHTSA) just like the Officer. If you have submitted to Field Sobriety Testing and it resulted in your arrest, you need a lawyer who understands the tests and can attaxck their use in Court.

    You are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". A polite refusal is the best response
  6. Why did the officer make me follow a penlight with my eyes to the left and right?

    This is the "horizontal gaze nystagmus" test. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for involuntary jerking of the eye); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

    This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset.

    Again, you should politely refuse if asked to "look at this pen and follow it with your eyes".
  7. Should I agree to take a chemical test? What happens if I don't?

    There are several adverse consequences to refusing to submit to a breath or blood test (or urine if neither are available or if drugs are suspected).

    You will expose yourself to a longer license suspension if you refuse to take the chemical test, and in some instances refusal to take the test more than twice is a crime in itself in Louisiana.

    You must weigh the negative consequences of refusing to take the test with the possibility that a poor reading on the test may be all the evidence needed to convict you in Court.

    If you do decide to take the breath test, you should insist on being given an opportunity to take an independent blood test at the nearest hospital. You will be required to pay for this test yourself, but that blood sample may be the only evidence available to your lawyer that the breath reading was not accurate. Make sure you communicate your desire to take an independent blood test to the Officer clearly and politely. Mark suggests that you write the words Blood Test next to your signature on the Chemical Test rights form the Officer is required to read to you.
  8. BEWARE, in Louisiana you are subjecting yourself to enhanced penalties if your blood alcohol level is above .15 or .20. You may face mandatory jail time or increased license suspension times.
  9. Do I have a choice of chemical tests? Which should I choose?

    No. You do not have a choice; however, if you choose the breath test, the law permits you to have a second test of blood or urine. The breath sample is not saved and cannot later be re-analyzed.

    If you do decide to take the breath test, you should insist on being given an opportunity to take an independent blood test at the nearest hospital. You will be required to pay for this test yourself, but that blood sample may be the only evidence available to your lawyer that the breath reading was not accurate. Make sure you communicate your desire to take an independent blood test to the Officer clearly and politely. Mark suggests that you write the words Blood Test next to your signature on the Chemical Test rights form the Officer is required to read to you.

    Urine tests are of very little scientific value and you should only request an independent blood test.
  10. The officer never gave me a Miranda warning: Can I get my case dismissed?

    No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution may not be able to use any of your answers to questions asked by the police after the arrest.

    Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license and the admissibility of the breath test results in evidence at a trial of your case.
  11. What crimes will I be charged with?

    In Louisiana, if you are operating a motor vehicle or watercraft while impaired or with a blood alcohol concentration of above .08, you may be charged with Driving While Intoxicated, a violation of Louisiana Revised Statute 14:98. You may also be charged with Reckless Operation or Careless Operation.
  12. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?

    The law in Louisiana provides for immediate confiscation of the license if the breath test result is above the legal limit or the individual refuses to take a chemical test.

    Your driving privileges will be suspended if you take no action. The time varies depending on the facts of the case.
  13. WARNING: You only have 15-days to request a hearing from Louisiana Department of Public Safety and Corrections. This is a critical step in almost all D.W.I. cases.
  14. Can I represent myself? What can a lawyer do for me?

    You can represent yourself -- although it's a bad idea. "Drunk driving" is a complex field with increasingly harsh consequences. There are complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

    What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

    If there are issues in your case or if you want to attempt to minimize the consequences of the arrest, or if you simply want to keep the charge from becoming part of your criminal record you should hire a good D.W.I. lawyer as soon as possible.
  15. How can I contact you to represent me in this matter?

    Call us at (504)-366-1641 to arrange a free initial case evaluation with a lawyer. You can also e-mail your questions or request for a consultation to markemorice@moricelawfirm.com.

  16. What will it cost to get a lawyer?

    This varies by the experience of the lawyer and by the location of the prosecution. As with doctors, generally, the more skilled the attorney, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each. Not all cases are alike and depending upon the needs of the client the lawyer may not have to perform all possible work for every client.

    In New Orleans, Louisiana the normal range is from $1,500 to $5,000.

    Factors that may cause the fee to be increased or decreased include:
  17. What is the punishment for drunk driving?

    For a DWI First Offense, the fine ranges from $300 to $1,000 (plus court costs and other fees), and the jail time can be 10 days to 6 months (all can be suspended.) You will also receive 32 community service hours. A substance abuse evaluation and driver improvement school is required. In the event that your BAC is over .15, you will receive a minimum of 48 hours in jail and a license suspension of 90 days.

    For a DWI Second Offense, the fine ranges from $750 to $1,000 (plus court costs and other fees), and the fail time can be 30 days to 6 months (all but 48 hours can be suspended). Your community service time will be 240 hours and you will be required to attend a substance abuse evaluation and driver improvement school. In the event that your BAC is over .15, the minimum mandatory jail time is 96 hours, and your Driver's License will be suspended for 1 year.
  18. What is a sentence "enhancement"?

    Louisiana law increases the punishment in drunk driving cases if certain facts exist. Those facts may include the presence of a child in the car. E-mail us if you need more specific information
  19. What is a "rising BAC defense"?

    It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.

    Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.
  20. What is "mouth alcohol"?

    "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

    Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
  21. What defenses are there in a DUI case?

    Potential defenses in a given Louisiana drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
  22. I have some questions about my DUI case. Where can I go for answers?

    Please visit the Links page of this web site or e-mail markemorice@moricelawfirm.com.